Falkner claimed the inclusion of his mural in GM’s marketing campaign for the Cadillac XT5 crossover infringed on his intellectual property rights. Photo credit: Twitter
General Motors, fighting a lawsuit claiming it unlawfully used an outdoor mural on a Detroit parking garage in its advertising, contends in court documents that since the mural is painted on an “architectural work,” the automaker cannot be held liable for copyright infringement.
Artist Adrian Falkner filed the federal lawsuit in January, claiming the inclusion of his mural in the automaker’s marketing campaign for the Cadillac XT5 crossover infringed on his intellectual property rights.
A hearing on the matter is set for Monday in U.S. District Court in Los Angeles.
“This right to photograph an architectural work extends to those portions of the work containing pictorial, graphic or sculptural elements,” the court filing states. “Because [Falkner’s] mural is painted onto an architectural work it falls squarely within the ‘pictorial representation’ exemption, and his copyright infringement claim should be dismissed.”
Falkner also claims GM intentionally covered his signature. In response, GM claims the mural covers two perpendicular walls and the artist’s signature, “Smash137,” is not visible because it’s located on the other wall, which is not pictured in the photograph, court documents state.
In addition, GM claims the freelance photographer, Alex Bernstein, was not aware that the other wall contained a signature, therefore the photographer could not have knowingly adjusted or removed copyright management information.
“A lot of people think that if you take a photo from a public street or something, then whatever you shoot is fair game, which is somewhat true, I guess, for you or me,” David Ludwig, of Washington, D.C., law firm Dunlap Bennett & Ludwig told Automotive News, commenting on the original lawsuit. “But if I’m in the business of using that to sell films or to use it in an ad campaign, it’s kind of a different metric if you’re putting it out there and showing it to the general public, so that’s kind of the distinction here.”